2010-31220. Approval and Promulgation of Air Quality Implementation Plans; Delaware; Limiting Emissions of Volatile Organic Compounds From Portable Fuel Containers

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve a revision to Delaware's State Implementation Plan (SIP). This SIP revision includes an amendment to Delaware's regulation for Volatile Organic Compounds (VOC) from Consumer and Commercial Products, Section 3.0—Portable Fuel Containers. This amendment will reduce VOC emissions from portable fuel containers, and therefore, will help Delaware attain and maintain the national ambient air quality standard (NAAQS) for ozone. This action is being taken under the Clean Air Act (CAA).

DATES:

This rule is effective on February 14, 2011 without further notice, unless EPA receives adverse written comment by January 13, 2011. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2010-0435 by one of the following methods:

A. http://www.regulations.gov. Follow the on-line instructions for submitting comments.

B. E-mail: [e-mail].

C. Mail: EPA-R03-OAR-2010-0435, Marilyn Powers, Acting Associate Director, Office of Air Program Planning, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2010-0435. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Delaware Department of Natural Resources and Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT:

Irene Shandruk, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

On April 1, 2010, Delaware submitted to EPA a SIP revision concerning Delaware's regulation for reducing VOCs from portable fuel containers (i.e. gas cans) in Delaware (Regulation No. 1141—Limiting Emissions of Volatile Organic Compounds from Consumer and Commercial Products, Section 3.0—Portable Fuel Containers).

I. Background

Regulation No. 1141—Limiting Emissions of Volatile Organic Compounds from Consumer and Commercial Products, Section 3.0—Portable Fuel Containers is concerned specifically with the use of portable fuel containers and reducing refueling emissions from equipment and engines that are predominantly refueled with portable containers. On November 22, 2002 (67 FR 57776), EPA approved the previous version of Section 3.0.

Effective January 1, 2009, the EPA began to regulate emissions from portable fuel containers (see, 72 FR 8428). The Federal rule provides more stringent emission control of portable fuel containers, and thereby achieves greater VOC emission reductions than the current Delaware regulation. Delaware, therefore, revised Regulation No. 1141 such that it does not apply to portable fuel containers manufactured on and after January 1, 2009, and that Delaware instead rely on the Federal rule to control emissions from this source.

II. Summary of SIP Revision

On April 1, 2010, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted a revision to the Delaware State Implementation Plan (SIP) that consists of Delaware's regulation for reducing volatile organic compounds (VOCs) from portable fuel containers (i.e. gas cans) in Delaware (Regulation No. 1141—Limiting Emissions of Volatile Organic Compounds from Consumer and Commercial Products, Section 3.0—Portable Fuel Containers). The revision to Regulation No. 1141 amends existing Section 3.0—Portable Fuel Containers. The effective date of this regulation was April 11, 2010.

Regulation No. 1141, Section 3.0 is revised to apply to any portable fuel container or spout or both portable fuel container and spout manufactured between January 1, 2003 and December 31, 2008. It eliminates the applicability of Section 3.0 to portable fuel containers manufactured on and after January 1, 2009, and instead these portable fuel containers are regulated by Federal regulation (see, 72 FR 8428).

III. Final Action

EPA is approving the Delaware SIP revision pertaining to Delaware's adoption of the Federal rule for portable fuel containers. This revision will result in greater VOC emission reductions from portable fuel containers, continuing to help Delaware attain and maintain NAAQS for ozone. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on February 14, 2011 without further notice unless EPA receives adverse comment by January 13, 2011. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

IV. Statutory and Executive Order Reviews

A. General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 14, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action pertaining to Delaware's portable fuel containers regulation may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: November 30, 2010.

W.C. Early,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart I—Delaware

2. In § 52.420, the table in paragraph (c) is amended by revising the entry for Regulation 1141, Section 3.0 to read as follows:

§ 52.420

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Regulations in the Delaware SIP

State regulation (7 DNREC 1100)	Title/subject	State effective date	EPA approval date	Additional explanation
*         *         *         *         *         *         *
1141	Limiting Emissions of Volatile Organic Compounds from Consumer and Commercial Products
*         *         *         *         *         *         *
Section 3.0	Portable Fuel Containers	4/11/10	12/14/10 [Insert page number where the document begins]
*         *         *         *         *         *         *

* * * * *